Politicians in Britain take the rule of law much more seriously
and so won't
deport terrorist suspects to their home countries - unlike France.

Why can’t we be more like the French? It is not a question much asked in Britain. But President Sarkozy’s decision, last week, summarily to deport two individuals known to have been involved in terrorism back to their own countries – in defiance of rulings from the European Court of Human Rights – has set a lot of people wondering. Why can’t our Government do the same? Why can’t we kick out the foreigners who want to harm us?

We seem incapable of taking that step. Instead, we dutifully follow judges’ rulings on men such as Abu Qatada, who is wanted for trial in Jordan for planting bombs there, and who has encouraged terrorism here. After 11 years of trying to get rid of Qatada, the British Government is still paying him benefits, and desperately hoping that one day, the judges on the European Court will allow us to send him back to his own country.

Why won’t David Cameron just do what President Sarkozy has done: ignore the European Court, and take the step that he thinks is necessary to preserve our security? The most important reason is that politicians here take the rule of law much more seriously than they do in France. They have to: in our system, judges have a power and an independence that they do not have in the French constitution. The drafters of the Napoleonic code took care to minimise the role of any form of judicial review of actions by the executive, because, as one of them said, “judicial review of government is tantamount to judicial government”.

Successive generations of French politicians and officials have taken the same view, culminating in General de Gaulle’s opposition to the creation of anything like a supreme court, on the grounds that the “only supreme court in France is the French people”. Up until very recently, the closest the French have had to a constitutional court is a committee that can only advise, not command, and which comprises ex-presidents of the republic. That “committee” tends not to criticise what the government does, still less rule that it has broken the law.

The contrast with the system in Britain could hardly be greater. Here, as in the US, judges regard it as their role to ensure that the government respects the law – and the law is what the judges say it is. If a prime minister, or indeed any member of the government, were openly to disregard a judicial ruling, it would trigger a constitutional crisis so serious that it would probably lead to the fall of the government. Which is perhaps why it hasn’t happened, and won’t.

The power of the judges does not, of course, prevent politicians in Britain from wishing there were ways round their rulings: witness Theresa May’s insistence that she will diminish the extent to which the right to family life can be used by judges to prevent deportations.

But the reality is that, for the most part, judicial decisions are the only force that stands between the citizen and the power of the central state. The lack of any such power in France explains why the state is able to get things done so much faster: there’s no judicial review holding up the building of a nuclear power station near your house, or blocking a government plan to shut down your local hospital. What the state in France wants, the state by and large gets. It’s efficient. But it can also be tyrannical. It is very far from obvious that we in Britain would be better off if the judiciary could not act as an effective check on executive power.

The short answer to why our politicians don’t act more like the French president is that the judges prevent them. British politicians would love to have the sort of unrestrained power that Sarkozy does. But as a citizen, I am, on the whole, glad that they are restrained by their commitment to following judges’ decisions – although I also wish that judges would help the Government in its efforts to rid us of obvious menaces such as Abu Qatada.